Pau Kau v. Wong Hoi Man

HCA006278/1980

BETWEEN:

Coram: Roberts, C. J.

Date: 5th & 6th December, 1983.

------------------

JUDGMENT

------------------

1. This claim is brought by the plaintiff, the father of the deceased, PAU Wing Fai, as administrator of the estate of his son, letters of administration having been granted to him in the Probate Registry on the 14th July, 1980. The deceased was aged 25 at the time of his death.

The accident

2. On 23rd May, 1979, at about 10.15 in the evening, a car with the registration number BW2241 was driven by the defendant, Miss WONG Hoi Man, along Princess Margaret Road in the direction of the northern entrance to the Cross-Harbour Tunnel. Not far from the entrance to the tunnel, the three lanes of Hong Chong Road, into which the flyover from Princess Margaret Road runs, are joined by a fourth lane, on the left, which brings in traffic from Hung Hom.

3. The surface of the road was dry and it had not been raining. There was no evidence as to lighting and this was not in issue in the case, but that I think it would be reasonable for me to infer that a major highway of this nature, fairly close to the entrance to the Tunnel, would have been well lit at all times.

4. In the defendant's car were four passengers, one on the front seat and three on the rear, including PAU Wing Fai, the deceased, who was sitting in the right-hand rear seat of the vehicle. As the car drove along Hong Chong Road, past the sliproad which brought traffic from the Hung Hom direction, a taxi, which has never been identified, came - from the left of the defendant's car and started to cut into the lane along which the defendant's car was driving; this was the second lane, taking the right-hand of the four lanes as being the first. When she saw the taxi apparently about to cross into her lane, the defendant applied her brakes and pulled her wheel, so as to turn. her car to its right in an effort to avoid what she thought would otherwise have been a collision between her car and the off-side of the taxi.

5. A sketch plan, which was produced in evidence, shows brake marks on the road, of a length. of 24.8 metres, which end at the crash barrier which was situated along the outside edge of the first lane.

6. Among the documents produced was a full and careful report prepared by Dr. S. Lingard, an expert in the mechanical condition and performance of motor vehicles. He estimated the speed at which the defendant's vehicle was likely to have been travelling before she applied the brakes at about 42 m.p.h., though he conceded that this might be inaccurate to the extent of about 7 m.p.h. plus or minus that figure.

7. The first plaintiff's witness, Mr. NG Heung-leung, who was one of the passengers in the car, was thrown out onto the road before it hit the barrier. He had no very clear recollection of speed and could say no more than that he did not think it was travelling fast.

8. The second plaintiff's witness, Miss LUI Mei Ha, another passenger in the defendant's car, testified that it was being driven at what she called 'a normal speed'.

9. The defendant herself estimated her speed at a little over 30 m.p.h. just before the taxi cut into her lane, but added that there was a speed limit of 40 m.p.h. at that point. This has not been challenged; and I seen to reason to criticize the defendant for the speed at which she was travelling on Hong Chong Road shortly before the collision.

10. The speed of the taxi was described by Miss Lui as being "very fast". The defendant estimated that it was travelling 10 m.p.h. faster than she was, otherwise it could not have cut into her path so quickly.

11. I accept this evidence as to the speed of the respective vehicles and am satisfied, as I have said, that the defendant was travelling at a reasonable speed in the circumstances but that the taxi was not.

How did the collision occur?

12. The first witness, Mr. Ng, described how he and the other passengers were chatting together in the back seat when the accident took place. He did not really observe much of the approach of the taxi, except that, as he described it "there was a tendency for the taxi to come into our lane", though he added that it was difficult to describe how the taxi crossed into the lane in which the defendant was driving.

13. Mr. Ng suggested that the taxi was about 100 feet ahead of them when it occupied half their lane. I discount this last piece of evidence insofar as it suggests that the taxi was a long way ahead of the defendant's car when it crossed into the defendant's lane. I think that this witness' evidence as to this was confused by his fall to the toad and by the passage of time.

14. I should mention, since it was mentioned in evidence, the suggestion that the defendant's vision was interfered with, just prior to the accident, by one of the passengers in the back seat trying to brush her hair out of her eyes.

15. Having heard the defendant and Mr. Ng, I am satisfied that there was a point at which one of the passenger in the back seat brushed the defendant's hair from her eyes, but that this was some minutes before the accident took place and can have had no effect whatever upon it.

16. Mr. Ng, the defendant and Miss Lui all agree that no signals were given by the taxi and that it gave no audible warning of its intention to do so, before it started to move into the defendant's lane.

Cutting in

17. It is necessary now to look more carefully at the evidence given by the eye-witnesses as to the manner in which the taxi cut in from the lane to the left of the defendant's lane. The second witness, Miss Lui, said -

18. The defendant described the taxi as "cutting into her lane" and as getting very close to her car at which point she braked. At the end of her evidence she said -

19. I accept the evidence which was given by Miss Lui and the defendant to the effect that it was the driving of the taxi which precipitated the events which followed.

20. It is thus established, to my satisfaction, that the taxi driver was attempting to cut into the lane occupied by the defendant's car, at a speed and in a manner which were high dangerous and that the defendant acted reasonably in reaching her conclusion, and it must be accepted that this kind of decision is an instantaneous one, that the taxi was forcing its way in front of her and that, unless she took immediate evasive action, a collision was inevitable.

21. This, however, is not an end to the matter. It is submitted on behalf of the plaintiff, that notwithstanding that it may have been the carelessness of the taxi driver that was the major cause of the crash, a degree of blame must still be attributed to the defendant. It was suggested that in braking and swerving to the right, the defendant had over-reacted to the emergency.

22. With this contention, I do not agree, for the reasons which I have already given.

23. The alternative submission, as I understood it, was that even if the defendant acted reasonably in braking and swerving to the right as she did, her driving, nevertheless, fell below the standards which are to be expected of a reasonable driver by virtue of her failure to avert a crash with the barrier which lies outside the right-hand lane.

24. At the time when she applied the brakes, on her evidence, she was going at a speed somewhat in excess of 30 m.p.h. On a dry surface, the overall stopping distance of a car travelling at 30 m.p.h., is 75 feet, which is approximately the distance of the brake marks. The time available to her between braking and hitting the barrier, assuming that she was going at about 30 m.p.h. would have been somewhat under two seconds.

25. It is important in considering these matters not to try to attribute to the ordinary driver an unusual degree of skill or speed of reaction.

26. I am, however, greatly influenced by the pattern of the brake marks, which appear on the sketch plan. These show that the angle at which the defendant's car was travelling was a shallow one and does not seem to be appreciably sharper than the kind of angle which would have been adcpted by a vehicle changing lanes in ordinary circumstances.

27. Dr. Lingard's report considers with some care the possibility that one of the contributory factors to the accident may have been a mechanical defect in the defendant's car. He comes to the conclusion, which I am prepared to accept, that such defects in the steering and braking systems of the car as were found, were unlikely to have been major factors.

28. It is therefore the degree of skill and speed of reaction which I think could be expected of an ordinary competent driver that are the determining factors; and I agree that it should have been possible for the defendant, if she had exercised the degree of skill to be expected of a reasonably skilled driver, to have pulled her car to the left, in other words, to have corrected the "swerve", as it was described, sufficiently for her car to have avoided the barrier.

29. She herself said, in her evidence, that she was taken by surprise and that the time was too short for her to swerve the car back to the left before she hit the barrier. I think that she should have been able to do this, and that consequently she was guilty of a degree of contributory negligence.

30. As al ways, in these cases, it is a matter of extreme difficulty to attempt to apportion blame. All I can do, using the phrase which judges employ, when they know they are doing no more than guess, which is "doing the best I can", I will attribute two-thirds of the blame to the taxi driver and one-third to the defendant.

Damages

31. On the basis of. that finding, I have to consider the question of damages. This is an even more difficult task than usual, by virtue of the paucity of evidence as to the likely earning capacity of the deceased.

32. At the time of his death, the deceased was working on a part-time basis at the Anne Black Y.W.C. A. Centre, earning $250 a month. He was a day-time student at the Chu Hai College, studying for a civil engineering qualification. He was also a part-time evening student at the Hong Kong Polytechnic. There was some evidence, which is supported by the certificates which were produced, that he was, to put it at its highest, a very moderate student and that, if he qualified at all, it was unlikely to be for at least two years.

33. Unfortunately, there was no evidence as to the earnings of a newly qualified civil engineer. The only evidence which was put before me about earnings, was that his father, who works as a vehicle attendant in a factory, was earning $2,000 per month. And that his sister, who has been working for many years in a plastic bag factory, earns an average of $1,500 per month.

34. Without any other material to assist me, I am prepared to assume that the deceased would have earned the same income as his father; and that he would have started to work after a further two years, by which time he should have graduated from Chu Hai College.

35. I shall thus take, for the purposes of the various calculations that are necessary, a figure of $250 per month as loss of earnings for the first two years from death, and $2,000 per month as his gross earnings from May 1981 onwards.

Fatal Accidents Ordinance

36. I will first consider the awards which should be made under the Fatal Accidents Ordinance, i.e. the loss to the deceased's dependants, who in this case were his father, now aged 55, and his mother, who is one or two years' younger and is suffering from a heart condition which prevents her from doing more than part-time work.

37. Again it is a matter of speculation as to how much the son would have contributed to the family income., and I have had to be guided, though I recognize that this is guess work, by the contribution made by the sister, Miss PAU Suk-ching. And according to her, she gives all her pay to her mother and receives back whatever she needs for her own expenses.

38. According to the father, the contribution made by the sister is $1,000 a month, to the family income pool. I am prepared to take this as the nett figure which remains in the family pool after the daughter has been refunded an amount for her own expenses.

39. The father said that he expected his son to continue to live at home. I accept that, if he had done so, he would have been expected to contribute to the family income, and will take it that his contribution would have been the same as the sister's, i.e. $1,000 per month.

40. In assessing the loss of dependency under the Fatal Accidents Ordinance, I have to deduct from the sum of $1,000 per month, the amount which would have cost the family to support the son. As there were four of them, I will deduct one-quarter of $1,000 as being the amount that would have been expended on his own maintenance, leaving a loss of income to the parents of $750 per month.

41. Under the Fatal Accidents Ordinance, therefore, there is a loss of income to the dependants from May 1979 to May 1981, of nothing, because during that period, when I have assumed he would continue to be a student, he would have been unable to contribute from his small earnings of $250 per month. From May 1981 until to-day, which I will take as 31 months, there would be a loss of $750 per month, which amounts to $23,250. Also, under the Fatal Accidents Ordinance, there has to be an allowance made for future loss of dependency.

42. I propose to take, on the authority of the Hong Kong cases to which I have been referred, and taking into account the respective ages of his two parents, a multiplier of 8. This leaves a further 41 months at $750 for future loss of dependency. This is a further $30,750, which gives $54,000 as the total under the Fatal Accidents Ordinance.

LARCO

43. I turn to the damages which, should be awarded under LARCO. I award the usual amount of $15,000 for loss of expectation of life and $2,815 by way of funeral expenses, a sum which is agreed.

44. Damages under LARCO for lost years, have to be treated, because of the interest factor, in two stages pretrial and post-trial loss. I have already taken an income of $2,000 as being that likely to have been earned by the deceased with effect from May 1981 and found that the total dependency was $1,000 per month. I have had no evidence, and indeed it would be difficult to see what evidence there could be, as to how much the deceased might have saved, from an income of $2,000 per month, but I am prepared to accept the rough rule of thumb approach suggested in WONG Sai-chuen ⁽¹⁾, i.e. to take a figure of 10% of a deceased person's nett earnings, that is to say earnings after tax, and it is not suggested there would have been tax deductible, as being his free balance. The free balance would then be added to the $1,000 to which I have already referred.

45. Post-trial, since I have decided to take a factor of 15, in view of the deceased's age of 25, at the time of his death would be-

for post-trial loss.

46. This gives, under LARCO, $193,200+$15,000+$2,815, which is $211,015.

47. In view of my apportionment of the blame, the award to the plaintiff under LARCO should be one-third of that amount which is $70,338. There will be interest at 7% on the funeral expenses, and on the $43,200 pre-trial loss from the date of the accident to to-day and 2% interest on the award for the loss of expectation of life from the service of the writ until to-day.

(1)    Civil Appeal No. 133 of 1981.

Representation:

J. Hingorani (Joseph C.T. Lee & Co.) for Plaintiff

F. Leung (Chan & Chuk) for Defendant.